Opinion
W.C. No. 4-150-713
November 12, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Henk (ALJ) which "suspended" her temporary total disability benefits as of November 7, 1994. We reverse.
The ALJ's findings of fact may be summarized as follows. The claimant sustained a compensable low back injury on July 13, 1992. As a consequence, she underwent lumbar fusion surgery on May 7, 1993. After the surgery, the claimant was followed by Dr. Danylchuk. By November 18, 1993, Dr. Danylchuk reported the claimant was doing well with no back pain and only occasional leg pain. However, it is undisputed that the claimant had not reached maximum medical improvement (MMI) by November 1993, and Dr. Danylchuk testified that he would not necessarily have expected her to do so until November 1994. (Danylchuk Depo. p. 19). Neither had Dr. Danylchuk released the claimant to perform her regular employment.
On January 2, 1994, the claimant was injured in a non-industrial automobile accident. This accident aggravated the claimant's industrial back injury, and she sustained new injuries including a herniated cervical disc and a tear of her right rotator cuff.
Dr. Danylchuk testified that, but for the automobile accident, the claimant would have been a candidate to return to work with restrictions in January 1994, and would have reached MMI for the back injury in approximately November 1994. Moreover, he opined that the effects of the motor vehicle accident interfered with treatment of the industrial back injury, and impeded the claimant's recovery from that injury. The ALJ also noted that Dr. Danylchuk apportioned "20% of Claimant's injuries to the July 1992 industrial accident and 80% of her injuries to the January 2, 1994 motor vehicle accident."
Under these circumstances, the ALJ found that the "majority," if not all, of the claimant's "complaints" were attributable to the motor vehicle accident. Further, the ALJ credited Dr. Danylchuk's opinion that, but for the motor vehicle accident, the claimant would have reached MMI for the industrial injury on or about November 7, 1994. Consequently, the ALJ concluded that, after November 7, 1994, the motor vehicle accident constituted an intervening event sufficient to break the causal relationship between the industrial injury and the claimant's wage loss. On this basis, the ALJ "suspended" the claimant's temporary total disability benefits as of November 7.
On review, the claimant contends that the ALJ's suspension of benefits was erroneous as a matter of law. In support of this contention, the claimant contends that, as of November 7, 1994, no circumstances existed which would permit termination of temporary total disability benefits under § 8-42-105(3), C.R.S. (1996 Cum. Supp.). In particular, the claimant notes that she was not at MMI, had not returned to regular employment, had not been released to regular employment, and had not received a written offer of employment within her restrictions. Moreover, the claimant contends that, under PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the automobile accident did not constitute an intervening event sufficient to terminate temporary disability benefits because the findings indicate that her wage loss was, to some degree, the result of the industrial injury. We agree with the claimant.
In PDM Molding, Inc. v. Stanberg, supra, the Supreme Court indicated that when the claimant establishes her initial entitlement to temporary total disability benefits the benefits must continue until the occurrence of one of the four events set forth in § 8-42-105(3). PDM Molding, Inc. v. Stanberg, 898 P.2d at 546. However, the PDM court also held that, if a temporarily disabled claimant is at fault for a separation from the employment during which the injury occurred, a question arises whether the subsequent wage loss is "caused" by the industrial injury within the meaning of § 8-42-103(1), C.R.S. (1996 Cum. Supp.). The court resolved this issue by concluding that the work-related injury is the cause of subsequent wage loss if it "contributes to some degree" to the wage loss. See also, Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995).
Based on the principles set forth in PDM Molding, we have previously rejected the argument that where an "intervening injury" delays the attainment of MMI for the industrial injury the industrial injury is no longer the cause of the wage loss. In Dill v. Troy Horton and Trent Horton, W.C. No. 4-160-011, January 26, 1996, the claimant became temporarily totally disabled as a result of an October 1992 industrial injury. In September 1994, the claimant's treating physician recommended surgery for the injury. However, the surgery was delayed until December 1994 because of the effects of an intervening non-industrial injury. The ALJ held that the claimant was not entitled to temporary disability benefits for the period during which the non-industrial injury delayed the attainment of MMI.
However, in Dill, we reversed the ALJ's order on the ground that the intervening event did not justify suspension of the temporary disability benefits. We noted that the claimant was temporarily totally disabled prior to the intervening injury, and the wage loss was total at that time. Thus, the intervening injury did not sever the relationship between the industrial injury and the wage loss, and to some degree the wage loss remained attributable to the industrial injury. See also, Gallegos v. Owens Corning, W.C. No. 4-221-098, October 25, 1995 (claimant's pregnancy did not constitute intervening cause of wage loss where it precluded her from taking medication for the industrial injury, and the medication was necessary to continue her employment).
Here, the ALJ's findings reflect that the claimant was temporarily totally disabled when she sustained the non-industrial automobile accident. Further, the disability resulting from the industrial injury has not improved subsequent to the automobile accident, and in fact, the ALJ credited Dr. Danylchuk's opinion that the industrial injury contributes as much as twenty percent to the claimant's "complaints." Although the ALJ clearly believed that the "majority" of the claimant's disability was attributable to the automobile accident, she was unwilling to find that it was the only cause.
Under these circumstances, the effects of the industrial injury are still, to some degree, the cause of the claimant's temporary disability. Therefore, we agree with the claimant that the effects of the motor vehicle accident do not preclude her from receiving temporary disability benefits in connection with the wage loss after November 7. Further, the claimant has not attained MMI for the effects of the industrial injury, and the mere fact that she might have attained MMI but for the automobile accident does not constitute a ground for terminating temporary disability benefits under § 8-42-105(3).
We also disagree with the respondents' argument that the PDM analysis is irrelevant where the evidence shows that the claimant would have attained MMI for the industrial injury but for the intervention of a non-industrial injury. To the contrary, in Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d at 498, the court concluded that PDM Molding allows the claimant to recover temporary disability benefits unless the industrial injury "plays no part in the subsequent wage loss." Thus, where, as here, the ALJ's findings indicate that the industrial injury continues to be at least a partial cause of the wage loss, a PDM Molding analysis is applicable and compels the conclusion that the wage loss remains compensable.
It follows that the ALJ erred in suspending the claimant's temporary total disability benefits on November 7, 1994, the theoretical date of MMI. Consequently, the claimant's temporary total disability benefits should be reinstated as of that date.
IT IS THEREFORE ORDERED that the ALJ's order dated March 25, 1996, is reversed, and the claimant's temporary total disability benefits are reinstated commencing November 7, 1994.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. DeanNOTICE Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed November 12, 1996 to the following parties:
Lynn Normandin, 28 Dundee Lane, Pueblo, CO 81001
Department of Corrections, P.O. Box 1010, Canon City, CO 81215-1010 % Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Steven U. Mullens, Esq., 1401 Court St., Pueblo, CO 81003 (For the Claimant)
Bruce B. McCrea, Esq., 1873 S. Bellaire, #1400, Denver, CO 80222 (For the Respondents)
Roxanne Baca, Esq., Attorney General's Office, Human Resources Section, 1525 Sherman, 5th Flr., Denver, CO 80203
By: __________________